Commercially reasonable manner: Difference between revisions

From The Jolly Contrarian
Jump to navigation Jump to search
No edit summary
No edit summary
 
(19 intermediate revisions by the same user not shown)
Line 1: Line 1:
In good faith and in a commercially reasonable manner:
{{a|negotiation|}}{{good faith capsule}}
*'''cuts the crap''': potentially unlocks a lot of negotiations and takes much of the line-by-line lawyering out of the others.
*The old “it presents heightened litigation risk” canard is bogus:
**The oft-cited “litigation risk” of agreeing to act reasonably is an extremely remote one.
**It hardly adversely affects litigation risk in any case: A dissatisfied client will take action, and there are plenty of legal devices it can use to imply or insert a requirement for reasonableness in any case.


Note also:
===[[Absolute discretion]]===
*FCA rules (including the “{{cobsprov|client’s best interest}}” rule – basically rule 1 of our [[conduct of business rules]]) impose this (at a minimum) as a conduct standard anyway.
To be sure, sometimes you might want to be able to act — or, more likely, ''not'' act — in your [[absolute discretion]]. Here you do not want argument. At least for “omission” cases, the “[[I never said it was]]” principle ought to get you home. But you might say the following:
*Both versions of the Industry standard ISDA {{tag|CSA}} impose it as standard
:'''''Standard of conduct''': Each party must act in good faith and (unless expressly entitled to act in its absolute discretion) in a [[commercially reasonable manner]].''
*Clients like it. It is psychologically valuable and a good selling point.
*Recent, directly on-point case-law ({{casenote|Barclays|Unicredit}}) supports the (self-evident) proposition that in acting in a commercially reasonable manner one need only consider one’s own reasonable commercial interests, not one’s counterparty’s (how could we possibly know what those were?). Thus the burden of proof for a counterparty to overcome (how could it possibly know what our commercial interests are?) is therefore significant
*We do, in fact, always and only act in a commercially reasonable manner. If we did not, the franchise damage would be as material as any perceived legal risk.
*Having a commercially reasonable standard expressly stated in the documents to my mind encourages the correct behaviour of business and risk management teams, further minimising franchise and litigation risk.


====The law====
A good place to look is {{Casenote|Barclays|Unicredit|[2014] EWCA Civ 302}}, which considered what a party must do if it is required to act in a commercially reasonable manner. As a corrective to any irrationally giddy feelings of happiness this may induce, see also {{casenote|Crowther|Arbuthnot Latham & Co Ltd}} — this is not a licence to do what the hell you like. If a discretion is designed for one purpose, you can’t use it to the exclusion of that purpose, to achieve another.


In what follows I assume you’re a [[good egg]]; the sort of person who means what he says, says what he means, and gives a legal covenant only in circumstances where he has an honest intention of carrying it out. If you’re not of that fibre, you have no place here.
====Bottom line====
 
This boils down to one of the [[JC]]’s home-baked {{tag|Latin}} aphorisms: ''[[Noli mentula esse]]''.
What should a self-respecting advocate think about the phrase: “in a commercially reasonable manner” - or ever “in good faith ''and'' a commercially reasonable manner”?
 
A more cautious soul than me might rail against it, but I say no: while there may be circumstances where one would want specifically to preserve the right to act in one’s absolute discretion without any room for argument, in most cases an obligation to act in [[good faith]] or in a [[commercially reasonable manner]] does not involves any great concession. It is hard to imagine a situation in which a [[good egg]] would deliberately otherwise; agreeing such language may help to persuade such a cautious soul against whom you might be arrayed across the wobbly bridge to consensus. It might unblock those negotiations where he had been saying “yes, but with that provision, your client literally would be entitled to do ''[and here insert some fantastically horrifying deed that your adversary - a chap otherwise apparently short of imagination - has managed to dream up]'' without any commercially reasonable basis for doing so” and so on.
 
Such cautious souls are rarely persuaded that it is not in a fellow’s interest to wantonly aggravate his client and contractual counterparties for the sheer fun of it, even though this is undoubtedly true.
 
Whatever the contract says, if a court finds that you have acted unreasonably or in bad faith, you should not expect much sympathy when you seek to demonstrate that, by the contract, you were ''entitled'' to act in bad faith.
 
The one argument against the general principal is that it is inherently vague and a potential source of dispute in itself. For certain key risk protections we do not want to give any grounds for dispute even though we will always exercise these rights reasonably and in good faith.
                                                         
The sort of text we are considering to address this concern, is as follows:
 
{{box|'''Standard of conduct''': Each party must act in good faith and (unless expressly entitled to act in its absolute discretion) in a [[commercially reasonable manner]].}}
 
This allows us to explicitly except some rights (by making them “absolute discretions”) and also explicitly puts the onus on the person alleging bad faith/commercial unreasonableness.
 
====The law====
A good place to look is {{Casenote|Barclays|Unicredit|[2014] EWCA Civ 302}}, which considered what a party must do if it is required to act in a commercially reasonable manner.


===In popular fiction===
[[commercially reasonable manner]] can be found in all sorts of places:
*{{tag|FCA}} [[conduct of business rules]] (including the “{{cobsprov|client’s best interest}}” rule) impose it as a minimum standard of conduct.
*Both versions of the Industry standard ISDA {{tag|CSA}} impose it as standard;
*It’s a standing term of the [[Uniform Commercial Code]] (you ''can'' contract out of it, though ''why'' you would is harder to say);
*Recent case-law ({{casenote|Barclays|Unicredit}}) finds that acting in a commercially reasonable manner means having regard to one’s own commercial interests, not the other chap’s.


====Is “commercially reasonable” ''really'' different from “reasonable”?====
{{sa}}
Spoiler: ''No''.
==See also==
*{{csaprov|Good Faith and Commercially Reasonable Manner}} (CSA Provision)
*{{csaprov|Good Faith and Commercially Reasonable Manner}} (CSA Provision)
*[[Implied terms]] (could a {{tag|commercially reasonable}} standard ever be implied? In England, no; in the US, yes).
*[[Implied term]]s (could a {{tag|commercially reasonable}} standard ever be implied? In England, no; in the US, yes).
*[[Such consent not to be unreasonably withheld]]
*{{casenote|Crowther|Arbuthnot Latham & Co Ltd}}
*{{casenote|Barclays|Unicredit}}
{{c|Negotiation hacks}}
{{ref}}

Latest revision as of 09:22, 2 September 2021

Negotiation Anatomy™


Comments? Questions? Suggestions? Requests? Insults? We’d love to 📧 hear from you.
Sign up for our newsletter.

“Good faith and commercially reasonable manner” as a general standard

Whether a merchant should commit himself to dealing in good faith, or in a commercially reasonable manner, or both, is one that vexes many of our learned friends. Especially those in America. The only discomfort it should occasion is to a solicitor’s[1] livelihood, for this magic expression, while doing no more than articulating the commercial imperative and the basic commercial outlook of a good egg, puts many a tedious negotiation to the sword.

Everyone benefits but officers of Her Majesty's — or (cough) the People’s — courts.

“In good faith and a commercially reasonable manner” cuts the crap and promises to unlock some negotiations and take the tedious line-by-line muck-raking out of others.

There is a certain kind of legal negotiator apt to see phantoms and ghosts at every turn. He has a bleak vision indeed of a counterparty’s general commercial aspirations for his organisation.

“What if,” he will say, “your traders mendaciously use this clause to bring about my firm’s misfortune in a way I – er – cannot now anticipate?” (This fellow’s imagination tend to be fantastical in the abstract, but rather prosaic in the particular).

Such a chap is often placated by the magical expression “acting in good faith and a commercially reasonable manner”. It may help persuade him across that wobbly bridge to consensus. Many a time it has helped the JC get home in time for supper.

Litigation risk: The one argument against the general principle is that it is inherently vague and therefore a source of potential dispute in itself, even if we always exercise our rights reasonably and in good faith. But come now — it only presents litigation risk to clients who don’t trust you — and here you have bigger problems, frankly — or for those whom you don’t trust — also not without issues. Here, your problem is not the good faith obligation; it’s that you have a lousy client relationship. It hardly affects litigation risk in any case: An unhappy client will take action either way, and will argue a lack of good faith in any case.

A contract is a bond of trust. How would a merchant explain to his counterparty that he wished to reserve for himself the right to act in bad faith?

As for commercial reasonableness, and that objection I can already see you formulating that it admits shades of doubt, and encourages litigation — well, for you the great case of Barclays v Unicredit should be a source of succour. And for you Americans, for whom Barclays v Unicredit is of persuasive value only, there is the fact that “in good faith and a commercially reasonable manner” is written into the Uniform Commercial Code should bend your ear: if it is okay there — and in the 2016 NY Law VM CSA — why not elsewhere?

In any case, whatever your contract says, if a court finds you have acted wantonly, or in bad faith, do not expect much sympathy when you argue that, by the contract, you were entitled to.

Absolute discretion

To be sure, sometimes you might want to be able to act — or, more likely, not act — in your absolute discretion. Here you do not want argument. At least for “omission” cases, the “I never said it was” principle ought to get you home. But you might say the following:

Standard of conduct: Each party must act in good faith and (unless expressly entitled to act in its absolute discretion) in a commercially reasonable manner.

The law

A good place to look is Barclays v Unicredit, which considered what a party must do if it is required to act in a commercially reasonable manner. As a corrective to any irrationally giddy feelings of happiness this may induce, see also Crowther v Arbuthnot Latham & Co Ltd — this is not a licence to do what the hell you like. If a discretion is designed for one purpose, you can’t use it to the exclusion of that purpose, to achieve another.

Bottom line

This boils down to one of the JC’s home-baked Latin aphorisms: Noli mentula esse.

In popular fiction

commercially reasonable manner can be found in all sorts of places:

  • FCA conduct of business rules (including the “client’s best interest” rule) impose it as a minimum standard of conduct.
  • Both versions of the Industry standard ISDA CSA impose it as standard;
  • It’s a standing term of the Uniform Commercial Code (you can contract out of it, though why you would is harder to say);
  • Recent case-law (Barclays v Unicredit) finds that acting in a commercially reasonable manner means having regard to one’s own commercial interests, not the other chap’s.

See also

References

  1. ↑ Being an officer of the court, American friends, and not someone who goes door-to-door selling encyclopaedias.
Retrieved from "https://jollycontrarian.com/index.php?title=Commercially_reasonable_manner&oldid=58642"